Where there are too many policemen, there is no liberty. Where there are too many soldiers, there is no peace. Where there are too many lawyers, there is no justice. -- Lin Yutang, Chinese-American Philosopher

While 28 States do provide varying legal protections for the religious
use of peyote by Indians, the U.S. Supreme Court ruled in 1990 in the
Smith case that it is constitutionally permissible for States to
prohibit such use. This legislation is made necessary by the Smith
ruling.

The Smith case began as an unemployment compensation dispute involving
Alfred Smith, a Native American employee of a private drug and alcohol
rehabilitation facility. Smith was fired and denied unemployment
benefits after acknowledging he had ingested the peyote sacrament during
a traditional religious ceremony of the Native American Church. The
Oregon Employment Division believed that the State had a compelling
interest in proscribing the use of certain drugs pursuant to a
controlled substance law.

Smith filed a case disputing the denial of unemployment benefits and
questioning the constitutionality of the controlled substance law as it
applied to his religious practice. Following protracted litigation, the
Oregon Supreme Court ruled that the prohibition on the sacramental use
of peyote violated the free exercise clause of the First Amendment.

The U.S. Supreme Court reversed, holding that the free exercise clause
of the First Amendment did not prohibit the State of Oregon from banning
the sacramental use of peyote through its general criminal prohibition
laws, or from denying unemployment benefits to persons dismissed from
their jobs for such religiously inspired use. In an opinion written by
Justice Scalia (joined by Chief Justice Rehnquist and Justices White,
Stevens, and Kennedy), the Court discarded the long-standing compelling
interest test, holding that facially neutral laws of general
applicability that burden the free exercise of religion require no
special justification to satisfy free exercise scrutiny. Finally, the
Court asserted that the free exercise of religion may be protected
through the political process. According to the majority, its inability
to find constitutional protection for religiously inspired action
burdened by generally applicable laws does not mean statutory exemptions
to such laws are not permitted or even desired. However, the majority
noted:

It may fairly be said that leaving accommodation to the political
process will place at a relative disadvantage those religious practices
that are not widely engaged in; but that unavoidable consequence of
democratic government must be preferred to a system in which each
conscience is a law unto itself or in which judges weight the social
importance of all laws against the centrality of all religious beliefs.

To reach its decision, the majority had to strain its reading of the
First Amendment and ignore years of precedent in which the compelling
government interest test was applied in a variety of circumstances. In
a strongly worded concurrence, Justice O'Connor took sharp issue with
the Court's abandonment of the compelling government interest test.
Justice O'Connor reviewed the Court's precedents and found that they
confirmed that the compelling interest standard is the appropriate means
to protect the religious liberty guaranteed by the First Amendment:

To say that a person's right to free exercise has been burdened, of
course, does not mean that he has an absolute right to engage in the
conduct. Under our established First Amendment jurisprudence, we have
recognized that the freedom to act, unlike the freedom to believe,
cannot be absolute. Instead, we have respected both the First
Amendment's express textual mandate and the governmental interest in
regulation of conduct by requiring the government to justify any
substantial burden on religiously motivated conduct by a compelling
state interest and by means narrowly tailored to achieve that interest.

However, RFRA left open the question of whether the reinstated
compelling government interest test would provide adequate legal
protection for the traditional religious use of peyote by American
Indians--the precise religious practice at issue in Smith. As President
Clinton emphasized when he signed the Religious Freedom Restoration Act
on November 16, 1993:

The agenda for restoration of religious freedom in America will not be
complete until traditional Native American religious practices have
received the protection they deserve. My Administration has been and
will continue to work actively with Native Americans and the Congress on
legislation to address these concerns.

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Excerpted from material contributed by Tom Leonard, a member and
director of the Ponca Chapter of the Native American Church of Oklahoma.

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